New York State Court of Claims

New York State Court of Claims

ROTHSTEIN v. STATE OF NEW YORK #2000-016-005, Claim No. 95337


State held not liable for injuries suffered by claimant at the Staten Island armory.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Michael F. Mongelli, II, P.C.By: Edward J. Pavia, Jr.
Defendant's attorney:
Eliot Spitzer
Attorney GeneralBy: Anne Pavlides, AAG
Third-party defendant's attorney:

Signature date:
March 31, 2000
New York

Official citation:

Appellate results:
REVERSED 726 NYS2d 636
See also (multicaptioned case)


Donna Rothstein brings this claim for injuries suffered from an October 22, 1996 fall caused by a piece of barbed wire on a sidewalk fronting the property of a State armory in Richmond County.

The State had entered into a contract with JAT Development Corporation "[t]o do a site improvement and removal of poison ivy, poison oak, dead trees...[r]eplace fencing...and barbed wire" (cl exh 6, as described by Grace Clark, the facilities superintendent for the armory). Consequently, a portion of fencing along Martling Avenue was removed for several months in 1996; the contractor used an orange netting as temporary fencing (
cl exh 7). JAT's trucks would drive over the sidewalk to enter and leave the work site.
That October day, Rothstein, a psychotherapist who lived and worked on Staten Island, had completed her appointments at 1 p.m., went home to change clothes for a walk and left her house just before 1:30. It was sunny out, claimant was wearing sneakers and she was soon walking on the Martling Avenue sidewalk along one side of the state armory. Then, about 50 feet ahead, on the grass strip between the sidewalk and street, "...I saw to my left, two orange cones and an orange ribbon around a tree... I slowed [the pace of my walk] a little bit, but I wasn't going slow."

Rothstein continued walking and then, about 20 feet in front of her, observed some rolled-up barbed wire, also on the grass median: "I might have slowed a little, but I wasn't going slowly". Moments later, she fell on the sidewalk next to the rolled-up barbed wire which, from the leaves, other debris and dirt tracks, is the spot at which JAT's trucks cross the sidewalk in and out of the work site. Claimant asserts she tripped on a piece of barbed wire on the sidewalk that was masked by the debris, a contention illustrated by a photograph taken by Rothstein's husband the next day without the presence of the injured claimant (cl exh 4). Claimant submits no incident report, nor the names of any eye-witnesses or notice witnesses.

The contract required that JAT "[s]tore materials and perform the [w]ork so that pedestrian and vehicular traffic is not obstructed" and "provide barriers during [the] performance of the work to... [p]rotect vehicular and pedestrian traffic" (cl exh 6, 1.05 &1.06.A.4, pp.93 &101). JAT was charged with cleaning up refuse, debris, and waste materials generated by the job at the end of each work day, leaving areas "broom clean." (id.,1.11.A, p.102).
Under the contract, all work was to be performed between 8 a.m. and 4:30 p.m. (
id.,1.05.A, p.93). Clark testified that JAT employees never left the job site before 3 p.m. and usually worked into the early evening. The day in question was a Tuesday and, as noted, the time of the incident was approximately 1:30 p.m., i.e., JAT was not finished for the day when Ms. Rothstein fell.
According to Clark, as facilities superintendent for the armory, she would survey the work site every other day; in addition, she might also send "...some of my employees out there to see." Clark also indicated that she attended a meeting at which the contractor was instructed to place tape on the tree " people wouldn't walk in that area". In the same context, Clark testified she never saw the orange cones off to the side on the grass. Article 9 of the contract gave the State the right to be informed of the progress of the job and to inspect the work (9.5 & 9.1, pp. 19 & 18).

* * *

Under the facts as adduced, the State is not responsible for an accident that may have been caused by JAT. Each party cites
Thomassen v J & K Diner, Inc., 152 AD2d 421, 424, 549 NYS2d 416, 417 (2d Dept 1989) in their briefs. The Second Department observed that while "[a]s a general rule, a property owner who has engaged an independent contractor to perform construction on his premises is not liable for the latter's negligence while the work is in progress", there are many recognized exceptions:
- the owner controls the manner in which the work is performed;

- the work is unlawful or a public nuisance;

- the owner is "bound by a statute to do a thing efficiently and injury results from its inefficiency" (
Id., 549 NYS2d at 418);

- the duties imposed are nondelegable, as "whenever the general public is invited into stores, office buildings and other places of public assembly" (
Id.); or

- the job is inherently dangerous to members of the public, as per
Beck v Woodward Affiliates, 226 AD2d 328, 640 NYS2d 205 (2d Dept 1996), in which a pedestrian was injured when she leaned against a building that had been cleaned with acid. But compare Chainani v Board of Education of the City of New York, 87 NY2d 370, 639 NYS2d 971(1995): a school district was not liable for the actions of an independent bus company's driver when a child crossing in front of his bus was struck -- the duty involved was not inherently dangerous.

None of these exceptions fit the facts in the matter at bar and thus the defendant cannot be vicariously placed in the shoes of the contractor. Moreover, claimant relies upon
Kleeman v Rheingold, 81 NY2d 270, 598 NYS2d 149 (1993), holding nondelegable the duty a lawyer owes his or her client when a process server failed to properly effect service. The process server was an independent entity, but its role was of central importance to the lawyer's basic duty to the client, a markedly different arrangement than that obtaining between the State and JAT Construction Corp.
Claimant also references
Giardina v Lee, 202 AD2d 278, 608 NYS2d 659 (1st Dept 1994), a case whose basic facts are close to ours -- a sidewalk slip on construction debris (a piece of lumber). However, there was sufficient evidence to show that the property owner placed the lumber on the sidewalk and exercised actual control over the manner in which the work was performed.
Furthermore, outside the ambit of vicarious liability, a premises owner may still be held liable if it had actual or constructive notice of a dangerous condition.
Thomassen, supra, 152 AD2d at 424, 549 NYS2d at 417. In our case, we have no evidence of prior knowledge. On constructive notice, per Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986), a condition must be visible and exist for a sufficient period of time in order that it may be discovered and remedied. The claimant here has not come forward with any information implicating Gordon. Rothstein fell during JAT's working hours; it is unlikely, without more evidence, that she can prove how long the condition existed. Even in the close-up photo taken the next day, the barbed wire is so difficult to see that the effect is like that of camouflaging (cl exh 4).
The larger picture does not help Rothstein. The place in question was open and obvious as a construction-site access with attendant debris. Claimant
was very familiar with this location and to the question, "[h]ow often have you walked along the same path", answered, "[n]umerous, numerous. I can't even count them. Many, many times." In addition, it was not until claimant was cross-examined, that she indicated, "[t]here was caution written on the orange tape around the tree in small letters." On the stand, claimant recalled that she slowed down from her fast pace when she was 50 feet away and then 20 feet away, but admits to still moving quickly and looking "straight ahead", looking down only "a little bit".
Barbed wire hidden in the leaves may well be a greater trip hazard than ordinary debris, but Rothstein should have been more circumspect. In addition, her explanation that the barbed wire was rolled on the left, had a piece in the debris on the sidewalk and then "extended a little bit beyond the sidewalk on the right" is unsupported by any other evidence, does not appear to match claimant's close-up photo of the barbed wire, and to this trier of fact, is an unexpected configuration.

In view of the foregoing, claimant has failed to prove her case by a preponderance of the credible evidence, and the claim is

March 31, 2000
New York, New York

Judge of the Court of Claims